Tan Chin Lay Evelyn v Cheng Soo May Stacy [2018] SGHC 240

Introduction

The plaintiff was a financial services consultant (“FSC”) with the Singapore branch of American International Assurance Company, Limited and with AIA Singapore Private Limited (collectively referred to as “AIA”). AIA organised its FSCs into agencies headed by district managers (“DMs”). The defendant was a DM and the plaintiff was a member of the defendant’s agency from 5 August 2008 to 19 March 2010. Between them, the plaintiff and the defendant also formed a contract to govern their FSC-DM partnership. Suit No 661 of 2015 is the plaintiff’s action against the defendant for, inter alia, damages for breach of the contract between them.

The plaintiff disputed parts of the defendant’s pleading in Defence and Counterclaim (Amendment No 2) (“DC Am2”) (which later became Defence and Counterclaim (Amendment No 3) (“DC Am3”)), on the basis that they were not consequential to amendments the plaintiff had herself made to and included in her Statement of Claim (Amendment No 1) (“SOC Am1”). Consequently, this led to various applications and appeals which I shall elaborate on below.

The latest appeals were Registrar’s Appeal No 146 of 2018 (“RA 146/2018”) and Registrar’s Appeal No 147 of 2018 (“RA 147/2018”) filed by the plaintiff and defendant respectively. I dismissed both appeals on 30 July 2018.

The plaintiff has appealed against my decision in respect of RA 146/2018. On 29 August 2018, she filed Civil Appeal No 157 of 2018 (“CA 157/2018”) to the Court of Appeal pursuant to para (g) of the Fourth Schedule to the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed). However, in her notice of appeal (“CA 157/2018 NOA”), she asked for orders on matters that were outside the scope of the appeal in RA 146/2018 and hence, outside the scope of my decision in that appeal. Except for para 8(d) of DC Am3, the other parts of the pleading in DC Am3 mentioned in CA 157/2018 NOA were outside the scope of RA 146/2018. These were, inter alia, paras 22(C)(a)(iii) and 28A.2, and all other parts of DC Am3 which refer to para 28A.2. I shall elaborate on these paragraphs below.

These are the grounds of my decisions in RA 146/2018 (and RA 147/2018).

Procedural history

On 22 December 2015, the plaintiff filed her statement of claim (“SOC”). On 8 January 2016, the defendant filed her defence and counterclaim (“DC”). On 22 January 2016, the plaintiff filed her reply and defence to counterclaim (“RDC”).

On 30 September 2016, the defendant filed Summons No 4778 of 2016 (“SUM 4778/2016”) for leave to make amendments to DC. On 4 January 2017, the defendant was granted leave to amend DC and to file Defence and Counterclaim (Amendment No 1) (“DC Am1”). The plaintiff was concurrently granted leave to make consequential amendments to RDC if necessary. On 6 January 2017, the defendant filed DC Am1. On 26 January 2017, the plaintiff filed Reply and Defence to Counterclaim (Amendment No 1).

On 26 May 2017, the plaintiff was granted leave from the court in Registrar’s Appeal No 130 of 2017 (“RA 130/2017”) to amend SOC and to file SOC Am1. The defendant was concurrently granted leave to make amendments to DC Am1 arising from SOC Am1. On 2 June 2017, the plaintiff filed SOC Am1. On 29 June 2017, the defendant filed DC Am2. As there were typographical errors, the defendant’s counsel attended before the Duty Registrar on 11 July 2017 and the defendant was granted leave, by consent, from the court to amend DC Am2 to correct those errors. She accordingly filed DC Am3 on 12 July 2017. Following which, on 14 July 2017, the plaintiff filed Reply and Defence to Counterclaim (Amendment No 2) (“RDC Am2”).

On 8 November 2017, the plaintiff filed Registrar’s Appeal No 328 of 2017 (“RA 328/2017”) against that part of AR Yeo’s decision which refused to strike out some of the amendments in DC Am3 (see [18] below). One set of these amendments not struck out pertained to paras 22C(a)(i) to 22C(a)(iii) of DC Am3.

SUM 5415/2017

Thereafter on 24 November 2017, the defendant filed Summons No 5415 of 2017 (“SUM 5415/2017”) for leave to make amendments to DC Am3, pursuant to O 20 r 5(1) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed), to include the amendments which had been struck out by AR Yeo in SUM 4488/2017 (“the proposed amendments”). One of the proposed amendments pertained to para 8(d) of DC Am3. The defendant made the application in SUM 5415/2017 on the basis that the proposed amendments were relevant to the matters in the suit and were required to place the real issues before the court even though they were not consequential to SOC Am1.

On 20 April 2018, the hearing of SUM 5415/2017 before Assistant Registrar Lee Yuxian Jay (“AR Lee”) was adjourned partly because the plaintiff was unwell. The hearing before him continued on 3 May 2018 and 7 May 2018. On 7 May 2018, because the proposed amendment to para 8(d) of DC Am3 was lacking in specificity, AR Lee gave the defendant an opportunity to reframe that proposed amendment for the plaintiff to know the case she had to meet. The matter was adjourned to 11 May 2018.

(a) no order on costs for the adjournment of the first hearing on 20 April 2018;

(b) the defendant was to pay the plaintiff $2,500 (inclusive of disbursements) as costs occasioned by the proposed amendments allowed, as the plaintiff would have to review them to see if further amendments had to be made to RDC Am2; and

(c) the plaintiff was to pay the defendant $2,000 (inclusive of disbursements) as costs of the application to make the proposed amendments to DC Am3 itself.

Further, AR Lee directed the defendant’s counsel to file Appendix 1 after the hearing by the same day, which the defendant’s counsel did.

Filing of RA 146/2018 and RA 147/2018

On 24 May 2018, the plaintiff filed RA 146/2018 to appeal against part of AR Lee’s decision. From her notice of appeal (“RA 146/2018 NOA”), this appeal was primarily against:

(a) the decision to grant the defendant leave to make the Disputed Amendment to DC Am3; and

(b) the decision on costs occasioned by the proposed amendments allowed (see [14(b)] above).

Decision in RA 328/2017

On 2 July 2018 and 6 July 2018, I heard RA 328/2017 on AR Yeo’s decision not to strike out some of the amendments in DC Am3 (see [10] above). I found the amendments which were the subject of the appeal to be:

(a) consequential to SOC Am1 (which included the amendments that pertained to paras 22C(a)(i) to 22C(a)(iii));

(b) not consequential to SOC Am1; or

(c) not clear whether consequential or not to SOC Am1.

However, I allowed all the amendments (except for one) because I saw no useful purpose in compelling the defendant to make a fresh application for leave to include those amendments in [18(b)] and [18(c)] above. I ordered the defendant to pay costs in respect of SUM 4488/2017 (see [9] above) and RA 328/2017 to the plaintiff fixed at $8,000 plus reasonable disbursements to be agreed or fixed by the court.

Hearing of RA 146/2018 and RA 147/2018

On 30 July 2018, I heard both RA 146/2018 and RA 147/2018 (see [16]–[17] above).

Summary

By way of a summary, the various key applications and appeals that were described above are set out in the following table:

Parties’ arguments

As mentioned, the original proposed amendment to para 8(d) of DC Am3 had previously been struck out by AR Yeo in SUM 4488/2017 (see [11] above). Thereafter, this original proposed amendment was reframed on 11 May 2018 (ie, this became the Disputed Amendment) when AR Lee gave the defendant an opportunity to reframe it (see [12]–[13] above). In view of this procedural history, the Disputed Amendment was the insertion of the underlined portion as follows to para 8(d) of DC Am3:

The plaintiff’s main ground of objection to the Disputed Amendment was that the defendant was allegedly adding new factual material that would give rise to a new cause of action which did not arise out of the same facts or substantially the same facts as a cause of action in respect of which relief had already been claimed in the action by the defendant. The plaintiff submitted that the defendant’s application for leave to make the Disputed Amendment was made after the relevant period of limitation, and so pursuant to O 20 rr 5(2) and 5(5) of the Rules of Court, the Disputed Amendment could not be allowed.

On the other hand, the defendant submitted that the Disputed Amendment was necessary to enable the real issues to be placed before the court, and could be made pursuant to O 20 r 5(1) of the Rules of Court. The defendant argued that the Disputed Amendment served to clarify the existing parts of the pleading on the “Defendant’s portion of 20% discount for clients”, which had already been pleaded in DC at paras 22 and 22.2 (which were thereafter, DC Am3 at paras 22C(b)(iii) and 22C(b)(v)(2)). The defendant also submitted that the substance of the matters raised in the Disputed Amendment had already been raised in paras 22C(a)(i) to 22C(a)(iii) of DC Am3.

At the hearing for RA 146/2018 and RA 147/2018, the defendant’s counsel submitted that the Disputed Amendment was not to maintain a counterclaim against the plaintiff. In the light of this, the defendant’s counsel said that the defendant agreed to insert the following sentence at the end of para 8(d) of DC Am3:

I add that at the hearing, the plaintiff also sought further orders from this court to strike out the following parts of the pleading in DC Am3:

(a) para 22(C)(a)(iii); and

(b) para 28A.2 and all parts of the pleading relating to it.

These further orders sought were not part of the appeal in RA 146/2018 NOA.

Decision

I will deal first with the further orders that the plaintiff sought from this court to strike out other parts of the pleading in DC Am3 (see [26] above). As mentioned, these matters were not part of the appeal in RA 146/2018 NOA to begin with. This was in itself sufficient basis not to grant these further orders. Nevertheless, because the plaintiff again included these matters in CA 157/2018 NOA as part of her appeal (see [47(b)]–[47(c)] below), I will briefly elaborate on them.

SUM 5415/2017, from which the appeal in RA 146/2018 was brought, was the defendant’s summons for leave to make the proposed amendments to DC Am3, to include the amendments which had been struck out in SUM 4488/2017. SUM 5415/2017 was not the plaintiff’s summons to strike out parts of the pleading in DC Am3.

Paragraph 28A.2 of DC Am3 and all parts of the pleading relating to it

I first discuss the plaintiff’s request to strike out para 28A.2 of DC Am3 and all parts of the pleading relating to it. This issue did not even arise from SUM 5415/2017, or any summons in this suit to begin with.

The plaintiff had never filed any summons previously in this suit to request for para 28A.2 to be struck out. Apart from a change in the paragraph numbering from “28.2” (in DC, DC Am1 and DC Am2) to “28A.2” (in DC Am3), the defendant had made no amendment to the text and figure in para 28A.2 of DC Am3. In SUM 4488/2017 to strike out parts of the defendant’s pleading in DC Am2/DC Am3, the plaintiff had only requested to strike out the amendments to the figures stated in para 28A of DC Am3 (and the particulars provided at para 28A.1 of DC Am3). To be clear, the only amendments were to the figures in paras 28A and 28A.1; as mentioned, there was no amendment to para 28A.2. The court granted the plaintiff’s request to strike out the amendments to the figures in paras 28A and 28A.1.

The defendant then requested in SUM 5415/2017 for leave to make amendments to DC Am3 to include the amendments which had been struck out in SUM 4488/2017. Of relevance here are thus the proposed amendments to the figures in paras 28A and 28A.1. The court granted the defendant leave in SUM 5415/2017 to make these amendments.

There was therefore no basis for the plaintiff to request, in RA 146/2018, to strike out entirely para 28A.2 of DC Am3 and all parts of the pleading relating to it.

Paragraph 22(C)(a)(iii) of DC Am3

In relation to the plaintiff’s request to strike out para 22(C)(a)(iii) of DC Am3, this issue also did not arise from SUM 5415/2017.

In SUM 4488/2017 to strike out parts of the defendant’s pleading in DC Am2/DC Am3, the plaintiff had requested to strike out the amendments to include paras 22C(a)(i) to 22C(a)(iii) of DC Am3. AR Yeo did not strike out these amendments (and some other amendments in DC Am3). The plaintiff filed RA 328/2017 to appeal against this part of AR Yeo’s decision.

Paragraphs 22C(a)(i) to 22C(a)(iii) of DC Am3 state as follows:

I found in RA 328/2017 that the defendant’s amendments to include paras 22C(a)(i) to 22C(a)(iii) of DC Am3 were consequential to SOC Am1 (see [18(a)] above). One of the plaintiff’s amendments in SOC Am1 was to enlarge her claim in relation to “the loss caused by the Defendant’s breaches of Clauses 1 and 3 of the Agreement”. (It is not necessary in the grounds of my decision to explain this category of loss claimed.) At the hearing for RA 328/2017, the defendant submitted that the plaintiff was then claiming in SOC Am1, inter alia, for amounts allegedly due before July 2009. Since paras 22C(a)(i) to 22C(a)(iii) of DC Am3 pertained to the defendant’s claim that “she is not liable to the Plaintiff for any sums that were allegedly due before 30 June 2009”, I was of the view that the inclusion of these paragraphs in DC Am3 was consequential to SOC Am1. The plaintiff did not appeal against any aspect of my decision in RA 328/2017.

Therefore, I did not grant the further orders that the plaintiff had sought from this court to strike out paras 22(C)(a)(iii) and 28A.2 of DC Am3 and all parts of the pleading relating to para 28A.2.

The Disputed Amendment

I now turn to the Disputed Amendment, which has been set out at [22] above. The original proposed amendment to para 8(d) of DC Am3 (before it was reframed to the Disputed Amendment) had not been found to be consequential to SOC Am1 in SUM 4488/2017 (see [9] and [11] above). However, the defendant’s basis for filing SUM 5415/2017 for leave to amend para 8(d) was that the original proposed amendment/the Disputed Amendment was relevant to the matters in the suit and was required to place the real issues before the court.

The Disputed Amendment related to, inter alia:

(a) payments made to the plaintiff by the defendant from August 2008 to June 2009 which did not include “the Defendant’s portion of the 20% discounts given by the Plaintiff to her customers”; and

(b) the plaintiff’s acceptance of this method of computation for the payments when the defendant made payment to her by way of five cheques from 10 December 2008 to 15 June 2009.

The matters raised in the Disputed Amendment were similar to those already raised in paras 22C(a)(i) to 22C(a)(iii) of DC Am3 (as set out at [35] above). By way of summary, paras 22C(a)(i) to 22C(a)(iii) related to, inter alia:

(a) the defendant’s non-liability for “any discounts given by the Plaintiff to her customers” during the period from August 2008 to June 2009 (see para 22C(a)(iii)); and

(b) the plaintiff’s acceptance of the defendant’s payments to the plaintiff by way of five cheques from 10 December 2008 to 15 June 2009 (see paras 22C(a)(i) and 22C(a)(iii)).

I was satisfied that the Disputed Amendment served to clarify what was already pleaded in para 8(d). The Disputed Amendment was an insertion of around two sentences into para 8(d) itself, to clarify how the defendant made payments to the plaintiff from August 2008 to June 2009. I make no comment on the defendant’s argument that the Disputed Amendment also served to clarify the defendant’s pleading on the “Defendant’s portion of 20% discount for clients” at paras 22C(b)(iii) and 22C(b)(v)(2) of DC Am3 (see [24] above).

For these reasons, the Disputed Amendment did not give rise to a new cause of action. Further, the defendant agreed to insert an additional sentence in DC Am3 to state that the allegations in para 8(d), which included the Disputed Amendment, were not to maintain her counterclaim against the plaintiff (see [25] above).

Order 20 rules 5(1), 5(2) and 5(5) of the Rules of Court state:

CA 157/2018

As mentioned, after I dismissed both RA 146/2018 and RA 147/2018 on 30 July 2018, the plaintiff filed CA 157/2018 on 29 August 2018 to the Court of Appeal to appeal against my decision in respect of RA 146/2018, pursuant to para (g) of the Fourth Schedule to the Supreme Court of Judicature Act. I will make some comments on CA 157/2018 NOA.

In CA 157/2018 NOA:

(a) paras 1 and 1(a) pertain to the plaintiff’s request that the amendment to para 8(d) of DC Am3 (ie, the Disputed Amendment) be disallowed;

(b) para 2 pertains to the plaintiff’s request that the amendment that included para 22(C)(a)(iii) in DC Am3 be disallowed;

(c) para 3 pertains to the plaintiff’s request that para 28A.2 and all other parts of DC Am3 which refer to it be struck out;

(d) para 4 pertains to the plaintiff’s request that the amendments in other paragraphs which were the subject of RA 328/2017, SUM 5415/2017 and SUM 4778/2016 be disallowed;

(e) para 5 pertains to the plaintiff’s request that the costs orders for RA 146/2018 be set aside; and

(f) para 6 pertains to the plaintiff’s request that costs be paid by the defendant to her for, inter alia, costs of the application to make the proposed amendments to DC Am3 itself (ie, SUM 5415/2017) (see [14(c)] above) and costs occasioned by the proposed amendments allowed (see [14(b)] above).

In relation to paras 1 and 1(a) of CA 157/2018 NOA, there is the question whether the plaintiff may bring an appeal to the Court of Appeal against my decision in RA 146/2018 to grant the defendant leave to make the Disputed Amendment to DC Am3.

Section 34(1)(a) of the Supreme Court of Judicature Act states:

Paragraph (g) of the Fourth Schedule to the Supreme Court of Judicature Act states:

The plaintiff filed CA 157/2018 pursuant to para (g) of the Fourth Schedule to the Supreme Court of Judicature Act. However, the Disputed Amendment did not have the effect of adding or substituting a new cause of action (see [42] above). Further, the defendant agreed to insert an additional sentence in DC Am3 to state that the allegations in para 8(d), which included the Disputed Amendment, were not to maintain her counterclaim against the plaintiff. The Disputed Amendment was also not one to correct the name of a party or to alter the capacity in which a party sued. Therefore, pursuant to s 34(1)(a) and para (g) of the Fourth Schedule to the Supreme Court of Judicature Act, it appears that the plaintiff cannot bring an appeal to the Court of Appeal against my decision in RA 146/2018 to grant the defendant leave to make the Disputed Amendment to DC Am3.

In relation to paras 2, 3 and 4 and the other parts of para 6 of CA 157/2018 NOA (see [48] above), it appears that the plaintiff cannot bring an appeal on matters that were outside the scope of the appeal in RA 146/2018. Further, in relation to para 2 of CA 157/2018 NOA, the plaintiff did not previously appeal against my decision in RA 328/2017 which allowed the amendment to include para 22(C)(a)(iii) in DC Am3 (see [36] above). In relation to para 3 of CA 157/2018 NOA, the plaintiff had never filed any summons in this suit to strike out para 28A.2 and all other parts of DC Am3 which refer to it (see [29] above). Therefore, it appears that there is no basis for the plaintiff to request that paras 22(C)(a)(iii) and 28A.2 and all other parts of DC Am3 which refer to para 28A.2 be struck out.

I will leave the parties to address the appropriate court on whether the plaintiff may appeal to the Court of Appeal in respect of the matters which are the subject of CA 157/2018.

Concluding remarks